dissenting.
I agree with the majority that in actions under the Federal Employers’ Liability Act (45 USC § 51 et seq), a trial judge may not be reversed for granting a remittitur of a portion of the amount awarded by a jury verdict unless there has been an abuse of discretion by the trial judge.
Because of the size of the jury verdict in this case, when considered in the light of the nature and extent of plaintiff’s injuries, I would also agree that there would be no proper basis for reversal of the exercise of discretion by this trial judge; provided, however, that he had exercised that discretion in accordance *221with and by application of the proper rules and standards applicable in such eases.
As held in State v. Lewis, 113 Or 359, 364, 230 P 543, 232 P 1013 (1924):
“* * * Discretion * * * is not an arbitrary and unrestricted power, but must be exercised according to fixed and settled rules.”
Indeed, as noted by the majority:
“* * * The only issues are the proper criteria to be applied by a trial judge in determining whether a remittitur should be granted, whether the trial judge applied these criteria, and whether the trial judge abused his discretion.”
As to the first question, i.e., what are the “proper criteria” to be. applied, the majority correctly points out that in the latest case decided by this court on this question, Staples v. Union Pacific R.R. Co., 265 Or 153, 155, 508 P2d 426 (1973), we held that in such a case:
“* * * [T]he trial court will not be reversed for denying remittitur unless the appellate court is of the opinion that the amount of the verdict is ‘outrageous,’ ‘shocking’ or ‘monstrous.’ * * *”
The majority also recognizes that three years earlier, in McMahan v. States Steamship, 256 Or 554, 556, 474 P2d 515 (1970), cert denied, 401 US 956, 91 S Ct 977, 28 L Ed 2d 239 (1971), this court approved, as a “proper test to be applied” in such cases, the criteria as stated in Taylor v. Washington Terminal Co., 409 F2d 145 (DC Cir 1969), to the effect that a remittitur should not be granted:
“* * * unless the verdict is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.”
*222The majority, however, is unable to perceive any difference between these tests or criteria and those stated in an earlier decision in Sandow v. Weyerhaeuser Co., 252 Or 377, 379, 449 P2d 426 (1969), in which it was said that in such cases:
“* * * [T]he trial court has the authority to grant a new trial, unless plaintiff files a remittitur, when the judgment exceeds any rational appraisal. Hust v. Moore-McCormack Lines, Inc., 180 Or 409, 435-36, 177 P2d 429 (1947). * * *”①
The majority says that these three tests or criteria all express “the same general idea”; that “descriptions of a difference of degree in an inexact concept are doomed to further inexactness”; and that “[t]he use of more words in an attempt to describe exactly that which is incapable of exact description would be counterproductive.”
I most respectfully disagree. I fully recognize the difficulty in “exact description” of the proper test to be applied in such cases. Many valid legal concepts, however, are not susceptible to “exact description.” Thus, it has been truly said that “[b]ecause [a] concept is hard to define does not mean that it does not exist. Beauty defies definition but few would dispute that some women are prettier than others.”②
It is the frequent function of the courts to attempt to put abstract concepts into words in terms sufficient *223at least to convey “differences of degree.” We cannot abdicate this duty, in my opinion, on the ground that a case involves a “difference of degree in an inexact concept.”③
Indeed, it might be suggested by some that this holding by the majority, if not a confession of impotence to deal with such problems, is one which indicates a willingness by the court to refuse to distinguish between concepts which it may consider to be “abstract” or “inexact” in any given case.
Thus, in another recent case the majority also equated, in effect, the formerly well-established rule of statutory construction to the effect that the courts must give effect to plain and unambiguous terms of a statute adopted by the legislature unless to do so would lead to an “impossible or absurd result,” with the rule, as now adopted by it, to the effect that the Oregon courts may refuse to give effect to plain and unambiguous terms of a statute adopted by the legislature whenever such an application of the words of a statute would bring about what the court considers to be an “unreasonable result.” See Johnson v. Star Machinery Company, 270 Or 694, 530 P2d 53 (1974), and dissenting opinion (at 61).
See also Comm. to Retain Judge Tanzer v. Lee, 270 Or 215, 527 P2d 247 (1974), including dissenting opinion, in which a majority of this court, fearing that “distinctions” which it considered to be “important only to lawyers” would “lead the court into a linguistic quagmire,” declined to apply in an election corrup*224tion practices case the usual rules of fraud applied in a civil action for fraud and, in doing so, set aside the verdict of the jury in that case.
To me, the test most recently approved by this court, to the effect that a trial judge may not grant a remittitur in such a case unless he can say affirmatively that the amount of the verdict is “outrageous,” “shocking,” or “monstrous,” although perhaps “inexact,” is far more limited, as a matter of degree, than the earlier language of Sandow under which a trial judge may do so if in his opinion the verdict exceeds “any rational appraisal.”
Indeed, it appears from the record in this case, as noted below, that the trial judge in this ease expressly recognized a distinction between the two tests.
In any event, it is also clear from the record, in my view, that the trial judge misapplied the “any rational appraisal” test, even assuming that it is a proper test, because he undertook to apply that test by considering whether, in his opinion, and as a purely subjective matter, the verdict was so high as to be “unreasonable.”
Thus, when defendant submitted its motion to set aside the verdict of the jury in this case as “excessive” it submitted a proposed order reciting that the verdict was “so grossly excessive as to shock the court and indicate clearly that the verdict was given under the influence of passion and prejudice”—in terms which correctly stated the test adopted by this court in Staples.
The trial judge, however, then deleted the words “so grossly,” “as to shock the court” and “clearly,” so that the order then recited only that the “jury ver*225diet is excessive and indicates that the verdict was given under the influence of passion and prejudice.”
In doing so the trial judge expressly stated that “I do not believe that the court found that the jury verdict shocked the court,” but that he “felt there was no rational basis for a verdict of that size.” He also stated, however, that in his view the question to be determined upon the application of that test was “what would be fair, reasonable and adequate general damages to the plaintiff.” By the application of that wholly subjective test, the trial judge then concluded that the verdict awarded by the jury was excessive and was given “under the influence of passion and prejudice.”
It is well established in Oregon that “the mere size of a verdict” is not sufficient “to establish that it was given under passion and prejudice.” Lane v. Stewart, 221 Or 293, 307, 351 P2d 73 (1960). See also Van Lom v. Schneiderman, 187 Or 89, 94, 210 P2d 461 (1949). Indeed, no contention is made by defendant that there was any incident during the course of this trial that could have aroused the “passion or prejudice” of the jury.
It has also been a “rule of thumb” among attorneys and adjusters in negotiating settlement in personal injury eases, at least in years past, that an award of general damages in an amount equal to three or four times the amount of special damages is one “within the range” of a proper settlement.
In this case, the special damages totaled $9,000. The result of the remittitur is to allow $15,000 in general damages. The jury, in awarding a total of $44,-*226000, awarded $35,000 in general damages, or slightly less than four times the amount of the special damages.
Accordingly, the trial judge was quite correct in stating that the verdict was not so high as to “shock the court.” For the same reasons, it is clear that it was not so high as to be “outrageous” or “monstrous,” under the test most recently adopted by this court in Staples and that it did not “exceed the maximum limit of a reasonable range within which the jury [could] properly operate,” under the test adopted in McMahan.
Indeed, and for those same reason^, it cannot properly be said, in my opinion, that such a verdict “exceeded any rational appraisal” for the purposes of the previous test as stated in Sandow.
What the majority has decided in this case, in my opinion, is to approve the conduct of a trial judge who has undertaken to decide for himself, on a wholly subjective basis, “what would be fair, reasonable and adequate general damages to the plaintiff,” and thus to substitute his judgment for that of the jury on this issue of such vital importance to the concept of the right to trial by jury in actions at law. By doing so in this case the majority has also, in my opinion, repudiated in effect, if not by express decision, the tests most recently adopted by this court in Staples and in McMahan.
Although the immediate effect of this opinion is limited to actions under the Federal Employers’ Liability Act, the ultimate results of this most recent exercise of the power of Oregon courts to set aside jury verdicts considered by them to be “unreasonable” remain to be seen. Cf. Palmer v. Van Petten Lumber *227Co., 265 Or 347, 350, 509 P2d 420 (1973), including dissenting opinion (at 378-83).
Although I would concur in a decision that would remand this case to the trial court, with instructions to reconsider its previous order by the application of the tests and criteria as stated in Staples and McMahan, I cannot agree with the majority in this case.
For these reasons, I must respectfully dissent.
In Hust v. Moore-McCormack Lines, Inc., 180 Or 409, 436, 177 P2d 429 (1947), this court said that a remittitur in such a case is proper if the court is convinced:
“* * * that the verdict substantially exceeds any rational appraisal or estimate of the damages * *
Lacy, Torts—1960 Oregon Survey, 40 Or L Rev 278, 283 (1961), in discussing the refusal of this court to give meaning to the term “gross negligence.”
As an example, the difference between the burden of proof “by a preponderance of the evidence” and “beyond a reasonable doubt.” See Cook v. Michael, 214 Or 513, 330. P2d 1026 (1958).